AZACK v Minister for Immigration and Border Protection

THE PRINCIPLES 10 There is no dispute about the relevant principles. The test is properly stated in Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 at [29]-[31] and in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [17]-[21]. The test of apprehended bias is whether a properly informed fair minded lay observer might conclude that the Tribunal might not bring an impartial mind to the resolution of the issues to be decided. As senior counsel for the Minister pointed out, it is also clear that the relevant apprehension must be firmly established if the decision of the Tribunal is to be set aside: Minister for Immigration v Jia Legeng (2001) 205 CLR 507.

THE TRIBUNAL DECISION 11 The Tribunal rejected the applicant's claim because it was not credible. 12 It observed in its reasons at [106] that the appellant was generally evasive in answering the Tribunal's questions, that on occasion he shifted his evidence when it started to become apparent to him that the Tribunal's questioning might lead him to give answers that may not assist his cause, and that he gave an explanation for his slightly inconsistent evidence (which it did not accept) concerning him being less than alert because of medication or having poor memory because of stress. 13 More specifically, it noted that in his original visa application, the appellant said that he had met the girl at a friend's birthday party in 2010. During the course of his questioning by the delegate, he then said that it was at a birthday party which was in October or November 2009, and also that he first met the girl when he had started university, around October 2010. His evidence was that the school year ended in June or July of each calendar year and that the university year commenced in about October of each year. The appellant also told the Tribunal (and the delegate) that he started getting serious threats after he had sexual relations with the girl, some seven or eight months after they had first met, and at a date which he later placed at around May 2010. 14 He said that his brother, who lives in Australia, made two efforts to secure his transfer to Australia by means of the two student visa applications. They were made because of the same threats. It was as a result of the first of those having been made in May 2010 that he changed his evidence, to say that he first met the girl in about October 2009 rather than in 2010. The Tribunal did not accept that he had changed his evidence due to stress and a difficulty in remembering the exact date. It found that his evidence about making the student visa claims because of the threats was inconsistent with his evidence about the timing of the relationship, and that he changed his evidence as to when he met the girl so that the timing of the first student visa application matched his story. It observed at [112]: Whilst the Tribunal should, and does, adopt a liberal approach towards an applicant's recall of significant dates, in this case, the conduct of the applicant, in the Tribunal's assessment, reveals him to have engaged in a pattern of dishonest behaviour designed to deceive. 15 In addition to the material already referred to, the Tribunal also referred to a claim the appellant made in the course of a hearing before the Tribunal that his father, whilst driving the appellant's car in Albania, was stopped and questioned by strange men. He told the Tribunal that he had learned about this from a telephone call from his father the day before the first hearing before the Tribunal, but later he said that his brother had told him of this the day before the hearing, and later he said that his brother and father were simply re-emphasising what had happened when they spoke to the appellant the day before the hearing. He said he had spoken to his father some days before. Then, the day before the second hearing, the appellant provided copies of certain police reports by his father and a friend about the incident. The Tribunal did not accept that that was genuine evidence. That was because it found that the police reports and documents provided in support of it, even if reflecting reports actually made, were reports made designed to bolster the appellant's fabricated claim about him being at risk from the family of the Muslim girl. It was too convenient, in the Tribunal's assessment, that the father reported being stopped on 27 June 2012, the same date as the first hearing. The Tribunal was also suspicious of the fact that, when this was pointed out to him, the appellant said that that occasion was the second time his father had been stopped, but it had not previously been the subject of a police report because it was the second occasion which was the more serious.

THE FEDERAL CIRCUIT COURT DECISION 16 The Federal Circuit Court (FCC) referred to the hearing process before the Tribunal. That involved five occasions when the appellant produced material, gave evidence and/or made submissions. They were: written submissions on 26 June 2012; oral hearing on 27 June 2012 (first hearing); written submissions on 17 July 2012; oral hearing on 18 July 2012 (second hearing); and written response on 30 July 2012 to letter sent to him under s 424A of the Act. 17 The appearance of bias was said, in submissions to the FCC and on this appeal, to have emerged during the second hearing. The FCC quoted extensively from the transcript of that hearing. 18 After referring to the submissions of the appellant based on that material, the FCC described at [21] the Tribunal's reasons for rejecting the appellant's arguments as "detailed and logical". The FCC in its conclusions said at [27]-[34] that: it was for the Tribunal to assess the truthfulness or otherwise of the appellant's claims; the Tribunal's conclusions were "neither unreasonable nor untenable", including its adverse credibility finding, especially as the appellant's evidence had inconsistencies which were not slight including three different versions of when he met the Muslim girl in question; the Tribunal's tone or tenor of voice did not change in the first or second hearings to suggest pre-judgment but was consistently polite and patient, albeit that its questions sometimes indicated concerns about the appellant's evidence; the Tribunal's decision not to seek evidence from a person in Albania was explained in its reasons and did not indicate a closed mind, and the Tribunal was not obliged to pursue that inquiry: cf Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594. 19 Consequently, the contention that the Tribunal's mode of consideration of the appellant's claim demonstrated ostensible bias on its part was rejected.

THE APPELLANT'S CONTENTIONS ON APPEAL 20 The contentions put on this appeal in essence reflect those put to the FCC. 21 In addition, it was argued that the FCC had erred by misdirecting itself as to the test for ostensible bias, and then by the finding that there was no reasonable apprehension of bias in the circumstances. It was accepted that, if the Court were satisfied that there was a reasonable apprehension of bias on the part of the Tribunal, the result would in any event be that the appeal should be allowed: see SZRUI v Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCAFC 80 (SZRUI), especially per Robertson J (with whom Allsop CJ agreed) at [85].

CONSIDERATION 22 It is convenient to deal with the first contention, as it can be shortly addressed. It is accepted by the appellant that the FCC at [19] of its reasons briefly, but correctly, stated the correct test for ostensible bias. However, the submission is that the FCC then failed to apply that test. It is correct to say, as was argued, that the FCC did not thereafter expressly say that it was applying that test, and did not refer in any detail later in its reasons to the test or to any cases where the test had been applied. However, I do not take the next step in the argument, namely that - because of what was not said - the Tribunal did not properly understand and apply the correct legal test. 23 To the contrary, in my view the FCC did understand and apply the correct legal test. I consider that the totality of its reasons indicates that it did understand the correct legal test, and that it applied that test when measuring the conduct of the Tribunal against that legal norm. 24 Whether the FCC reached a correct conclusion on the material before it, in essence the transcript of the two hearings and the recording of those hearings and the documentary material before the Tribunal, is the second ground of appeal. Counsel for the appellant submitted that a reasonable apprehension of pre-judgment clearly emerged in the course of the second hearing by the nature and content of the questions then put to the appellant. 25 I have carefully considered the material the Tribunal had available to it at the time of each of the hearings, and the form and content of its questions of the appellant in particular in the course of the second hearing. I have not separately listened to the recording of the second hearing, as I was informed that it is accepted that the Tribunal's tone of voice or behaviour throughout was consistent and appropriate. 26 It is clear that there were some inconsistencies of dates of events which quite legitimately could have required the Tribunal to consider why they arose. It was also properly within its province to raise those matters with the appellant at the second hearing. That is what the Tribunal did. It is apparent from the transcript of the hearing that the Tribunal had some concerns about such matters during the first hearing. The appellant's responses to such questions themselves provided part of the data upon which the Tribunal might assess the reliability of his evidence. The further information provided to the Tribunal immediately before, and at, the second hearing - both its character and the consistency of what the appellant said about it - was also material the Tribunal could take into account when assessing the reliability of his evidence, in particular about his relationship with the Muslim girl as that was the foundation for his claim to have a well-founded fear of persecution if he were to return to Albania. 27 It is quite likely in such circumstances that a person in the Tribunal's position may be forming provisional views about the reliability of the claims made as the decision-making process takes place. That occurs from a consideration of the whole of the material, the content of the progressive responses, and sometimes the way in which they are given. The transcript shows that, by a certain point in the course of the second hearing, the Tribunal had significant concerns about the truthfulness of the appellant's claims. 28 It does not, in my view, indicate a reasonable apprehension of bias on the part of the Tribunal, that the Tribunal should tell the appellant of those concerns. It provides a further opportunity for the appellant to address those concerns, perhaps by the way he responds or perhaps by the detail of his response or in some other way. I do not therefore regard comments towards the end of the second hearing such as at page 50 of the transcript: The issue though, for you, [Mr Appellant], is whether I believe your story about having being in a relationship with a Muslim girl and her family being after you. And I asked you earlier about this last time and I need to ask you again something. as indicative of ostensible bias. That observation was followed by a recital of what the Tribunal understood were the inconsistencies in the appellant's evidence about when he met the girl, and a request to explain them. 29 The appellant's answer started by saying he had not (as the recital part of the question asserted) said he had met the girl on New Year's Day, so that reference may have been an interpreter's error. The Tribunal indicated it was prepared to accept that. The succeeding exchange (transcript of second hearing, page 51) was categorised by the Tribunal as evasive answers. That is an available description. The appellant attributed to the Tribunal the assertion that the appellant had said that he first met the girl in the first year of high school; the Tribunal did not say that. The appellant said they first met in 2009/2010; the point of the question was that his visa application said "In 2010 …" and his oral evidence was that October or November 2009 was when they first met. The appellant's answer then was that he had been stressed and that has had its impact on him. 30 The next comment of the Tribunal is more forceful. It said: You see, what I think you've done is you've changed your evidence because your claims that you've applied for student visas to come to Australia, which we discussed last time because you were afraid don't match up with your evidence about when you met the girl. So, I think you've actually lied to me, by changing the day you met the girl so that the chronology of your applying for your student visas, after having had sex with the girl, works? 31 The appellant's responses (second hearing, transcript p 52) in sequence are that he did not mention New Year's Eve, he did not mention the first year of high school, and at the time of his visa application he was not focused on dates. 32 It is clear by that point that the Tribunal had a pretty firm view about the appellant's credibility or lack of it. The second hearing was almost complete. It commenced at 10.01 am with a break at 10.37 am and completed at 11.16 am, and the transcript runs to 17 pages (pages 40-56, following the first hearing). 33 The Tribunal next referred to the documents provided on 7 July 2012 of a report to the police. The Tribunal said it thought they were a false report to the police to try and shore up the claim, and that it considered the appellant was under a lot of stress because he was being found out in a fabricated story. The appellant insisted he was truthful, and said he had first met the girl in November 2009. 34 The Tribunal then asked the representative of the appellant if there was anything she wished to raise (second hearing, transcript p 53). The representative had clearly read the Tribunal's then view. She debated with the Tribunal the "what if I am wrong" test, and its significance to the decision to be made. In the course of that, the Tribunal pointed out that, on the appellant's final position on dates, serious threats were made at least from May 2010 (when the first student visa was applied for) but he had remained in Albania until February 2012 without being harmed. At the end of that exchange, the appellant said that sometimes he did not go to school to avoid that risk, and flooding in his area also protected him for periods as everything was blocked. 35 On 18 July 2012, the Tribunal then gave to the appellant an invitation to comment under s 424A of the Act on the same timing discrepancy about when he had first met the girl. The response was received on 30 July 2012, as a record of a phone interview between the appellant and his representative. 36 The information provided works back from the date of the first student visa application in May 2010, as the date when serious threats were first made. The only explanation for the error in the visa application is that he gets "confused with dates and years" and his representative suggested he think of "particular events rather than the actual dates". There is no explanation of why the process working back from the time of the first student visa application was not done in the first place, as that is a clear and definable event with an identifiable date. 37 The response also contained new information that a few days before the response the appellant had been told by the girl that a school friend (name and mobile telephone number provided) who he had kept in contact with had been asked for the appellant's telephone contact; the girl also told him not to return to Albania because "they were looking for me". The Tribunal was invited to contact the friend to corroborate his story, to a degree, as the note says the friend does not know "my story but he knew I was worried about something". 38 In the Tribunal's reasons, it noted it had not followed up on that information as it considered that any corroboration would itself be an unreliable and self-serving attempt to shore up the claim. 39 In my view, it is apparent from the Tribunal's questions towards the end of the second interview that regarded the appellant's evidence about the clearly inconsistent material on when he first met the girl as evasive. It had invited his comments on that inconsistency, and the response it had not found to be persuasive. Earlier in the second interview, it had asked the appellant about the recently received documents concerning the report of his father to the police of threats. It received that material with any adverse comment upon its cogency. 40 Is the consequence of that attitude, apparent on the transcript, that the Tribunal's decision was initiated by a reasonable apprehension of bias on its part? 41 That question arose in somewhat similar circumstances in SZRUI. The Full Court quashed a decision of the Tribunal for apprehended bias in the particular circumstances. As counsel for the appellant in this matter pointed out, that apprehended bias was demonstrated in SZRUI by statements made by the Tribunal in the course of the hearing. 42 It is clear that the Tribunal, as an investigative fact-finding body may want to test and probe a recounted history: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [19] per Allsop J (as his Honour then was). That may involve robust and forthright testing of claims and indeed such testing of claims may enhance the fairness of the administrative process by alerting the claimant to the concerns of the decision maker: SZRUI, at [24]-[27] per Flick J (with whom Allsop CJ agreed at [1]). 43 Flick J at [27] expressed the issue now confronting the Court in the following terms: The difficulty in any given case is to identify those cases in which a decision-maker is expressing tentative views and thereby enhancing the ability of a claimant to be properly heard as supposed to those cases where the expression of views by a decision-maker either gives rise to a reasonable apprehension that they are really not prepared to change those views no matter what may be further said by a claimant or in fact evidences a closed mind. The reasonable apprehension that a decision-maker has reached a fixed conclusion before the completion of a hearing is enough to vitiate the administrative process. 44 As his Honour then said at [29], more must be shown than a mere predisposition to a particular view and it is necessary to show a decision-maker's mind is not open to persuasion: see also Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 per Gleeson CJ and Gummow J at 531-532. 45 The entirety of the relevant circumstances must be considered: SZRUI at [3] per Allsop CJ and at [91] per Robertson J. In this matter, there is no element of impatience, irritation, sarcasm or insensitivity: cf VFAB v Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte AB (2003) 131 FCR 102 at [81]. It may also be observed, although it is self-evident, that no two cases will be alike: see eg SZRUI at [99] per Robertson J. For instance, the elements regarded as significant in SZRUI by Allsop CJ at [4], by Flick J at [35] and by Robertson J (with whom Allsop CJ also agreed) at [87]-[88] are not present in the same way in this matter. 46 I therefore revert to the question whether a properly informed lay person might reasonably apprehend that, as a matter of real and not remote possibility, the Tribunal may not have brought an impartial mind to the decision it had to make but instead had formed a fixed view not open to persuasion that the appellant had fabricated his claims. 47 I have reached the view that such apprehended bias is not demonstrated in this matter. That decision is arrived at taking into account the following matters: (1) the Tribunal conducted both the first hearing and the second hearing in a manner which does not suggest any element of predisposition, in the sense that there is no suggestion that there was any conduct on its part indicating that it was not open to persuasion (other than the particular series of questions or comments made towards the conclusion of the second hearing); (2) the form of the Tribunal's questions during the first hearing do not suggest a mind not open to persuasion; (3) the form of the Tribunal's questions during the second hearing until the latter part of that hearing, and including its questions about the recently provided material, also do not suggest a mind not open to persuasion; (4) there was clearly material indicating an inconsistency in the dates given by the appellant as to when he first met the girl which the Tribunal had signalled at the first hearing might cause it concern; (5) when the Tribunal re-introduced the topic towards the end of the second hearing (transcript, page 50), it did so by describing the issue as "whether I believe you" about the relationship and it fairly explained why; (6) the Tribunal promptly accepted the appellant's comment that he had not said New Year's Eve was an occasion when he first met the girl, but took the appellant back to the two dates mentioned in his visa application and in his evidence to the Tribunal (transcript, pages 50-57); (7) the Tribunal understandably took the appellant's then response as evasive, as it did not address his concern because it diverted to the reference to the first year of high school and to a compendious "2009/2010" date without recognising the inconsistency (transcript, page 51); (8) the next response of the appellant, when the inconsistency was again pointed out to him, was to say he had been stressed (transcript, page 51); (9) the three particular questions where the Tribunal has expressed a view are expressed as possible conclusions for comment: in each case the Tribunal has said "I think …" in a context which is inviting a response (which might or might not be persuasive) because there is a matter of concern to the Tribunal which on the material before it was a reasonable one (transcript, pages 51-52); (10) the Tribunal then sought and obtained any further response from the appellant's representative, including a discussion about the "what if I am wrong" test, a frank but appropriately expressed concern about the length of time the appellant had remained in Albania after May 2010 (transcript, pages 53-56); (11) the Tribunal sought, and subsequently considered the appellant's further response of 30 July 2012 including whether the suggested further inquiry might prove useful. 48 Counsel for the first respondent acknowledged that the form of those questions incorporating the expression "I think …" may have been better expressed as "I may think …". I agree. But on the overall context of the material, for the reasons given, the subtlety of the words used is not the deciding factor. It is whether the legal test referred to above should be answered in the affirmative or in the negative. 49 In my view, it is a relevant part of the context that the questions which are said to demonstrate ostensible bias were raised towards the end of the investigative process of the second hearing, when it might be expected that the Tribunal may well by then have evolved some views which it should put to the appellant to ensure there is not more that can be said to persuade the Tribunal to an opposite view: cf Galea v Galea (1990) 19 NSWLR 263. 50 Consequently, the ground of appeal is not made out and the appeal should be dismissed. The appellant should pay to the first respondent costs of the appeal. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.